April 4th, 2014

[This post is based loosely on my comments on a panel on 2 April 2014 for Terry Fisher's CopyrightX course. Thanks to Terry for inviting me to participate and provoking this piece, and to my Berkman colleagues for their wonderful contributions to the panel session.]

Copyright is part of a social contract: You the author get a monopoly to exploit rights for a while in return for us the public gaining “the progress of Science and the Useful Arts”. The idea is that the direct financial benefit of exploiting those rights provides incentive for the author to create.

But this foundation for copyright ignores the fact that there are certain areas of creative expression in which direct financial benefit is not an incentive to create: in particular, academia. It’s not that academics who create and publish their research don’t need incentives, even financial incentives, to do so. Rather, the financial incentives are indirect. They receive no direct payment for the articles that they publish describing their research. They benefit instead from the personal uplift of contributing to human knowledge and seeing that knowledge advance science and the useful arts. Plus, their careers depend on the impact of their research, which is a result of its being widely read; it’s not all altruism.

In such cases, a different social contract can be in force without reducing creative expression. When the public underwrites the research that academics do – through direct research grants for instance – they can require in return that the research results must be made available to the public, without allowing for the limited period of exclusive exploitation. This is one of the arguments for the idea of open access to the scholarly literature. You see it in the Alliance for Taxpayer Access slogan “barrier-free access to taxpayer-funded research” and the White House statement that “The Obama Administration agrees that citizens deserve easy access to the results of research their tax dollars have paid for.” It is implemented in the NIH public access policy, requiring all articles funded by NIH grants to be made openly available through the PubMed Central website, where millions of visitors access millions of articles each week.

The educational purposes of universities and colleges – teaching, research, and public service – have been recognized in federal law as critical to the well-being of our democratic society. Higher education institutions are in turn exempted from income tax so they can make the most of their revenues…. Because of their tax exemption, universities and colleges are able to use more resources than would otherwise be available to fund: academic programs, student financial aid, research, public extension activities, and their overall operations.

And it’s not just exemption from income tax that universities benefit from. They also are exempt from property taxes for their campuses. Their contributors are exempt from tax for their charitable contributions to the university, which results ceteris paribus in larger donations. Their students are exempt from taxes on educational expenses. They receive government funding for scholarships, freeing up funds for research. Constructing an estimate of the total benefit to universities from all these sources is daunting. One study places the total value of all direct tax exemptions, federal, state, and local, for a single university, Northeastern University, at $97 million, accounting for well over half of all government support to the university. (Even this doesn’t count several of the items noted above.)

All university research, not just the grant-funded research, benefits from the taxpayer underwriting implicit in the tax exemption social contract. It would make sense then, in return, for taxpayers to require open access to all university research in return for continued tax-exempt status. Copyright is the citizenry paying authors with a monopoly in return for social benefit. But where the citizenry pays authors through some other mechanism, like $50 billion worth of tax exemption, it’s not a foregone conclusion that we should pay with the monopoly too.

Some people point out that just because the government funds something doesn’t mean that the public gets a free right of access. Indeed, the government funds various things that the public doesn’t get access to, or at least, not free access. The American Publisher’s Association points out, for instance, that although taxpayers pay for the national park system “they still have to pay a fee if they want to go in, and certainly if they want to camp.” On the other hand, you don’t pay when the fire department puts out a fire in your house, or to access the National Weather Service forecasts. It seems that the social contract is up for negotiation.

And that’s just the point. The social contract needs to be designed, and designed keeping in mind the properties of the goods being provided and the sustainability of the arrangement. In particular, funding of the contract can come from taxpayers or users or a combination of both. In the case of national parks, access to real estate is an inherently limited resource, and the benefit of access redounds primarily to the user (the visitor), so getting some of the income from visitors puts in place a reasonable market-based constraint.

Information goods are different. First, the benefits of access to information redound widely. Information begets information: researchers build on it, journalists report on it, products are based on it. The openness of NWS data means that farms can generate greater yields to benefit everyone (one part of the fourth of six goals in the NWS Strategic Plan). The openness of MBTA transit data means that a company can provide me with an iPhone app to tell me when my bus will arrive at my stop. Second, access to information is not an inherently limited resource. As Jefferson said, “He who receives an idea from me, receives instruction himself without lessening mine.” If access is to be restricted, it must be done artificially, through legal strictures or technological measures. The marginal cost of providing access to an academic article is, for all intents and purposes, zero. Thus, it makes more sense for the social contract around distributing research results to be funded exclusively from the taxpayer side rather than the user side, that is, funding agencies requiring completely free and open access for the articles they fund, and paying to underwrite the manifest costs of that access. (I’ve written in the past about the best way for funding agencies to organize that payment.)

It turns out that we, the public, are underwriting directly and indirectly every research article that our universities generate. Let’s think about what the social contract should provide us in return. Blind application of the copyright social contract would not be the likely outcome.

All scholarly journals (toll access and OA) benefit from public subsidies. Most scientific research is funded by public agencies using public money, conducted and written up by researchers working at public institutions and paid with public money, and then peer-reviewed by faculty at public institutions and paid with public money. Even when researchers and peer reviewers work at private universities, their institutions are subsidized by publicly funded tax exemptions and tax-deductible donations. Most toll-access journal subscriptions are purchased by public institutions and paid with taxpayer money. [Emphasis added.]